13 F. 86 -

13 F1d 86

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Case Text

86

I'lIlDBBAL UPOBTBB.

she Is a citizen of the United States though she always resided in Ireland. Kane v. McCa1'thy, 68 N. C. 299. So the alien widow of a naturaUzed citizen,although she never lived in the United States during the life-time of her husband, is a citizen of the United States, and is entitled to dower in his real estate; Burton v. Burton, 1 Keyes,359. She becomes, by the act of marriage to a citizen, a citizen as effectually as if she had been naturalized by a judgment of the. court. LeonaI'd v. Grant, 5 FED. REP. 11. By analogy with this rule a woman born in the United States, but married to a citizen of France and domiciled there, is not a citizen of the United States, resident abroad. ff Citizenship," 18 Op. Att. Gen. 128.-[ED.

Where the inventor regarded an element as material, those who claim under the patent cannot now be heard to say that it is immaterial.
So IMPROVEMENT IN BREECH-LoADING ARU. Patent No. 205,198, for an improvement hi breech-1oadini me-arDLl, not infringed by defendants' fire-arms.

George W. Hey, for plaintiffs. Thomas Richardson. for defendant.
BLA.TOHFORD, Justice. This suit is bronght on letters patent No. 205,193, granted to Daniel M. La Fever. Jnne 25, 1878, for an "improvement in breech-loading fire-arms." The specification states the object of the invention to be-

.. Togive a more perfectly fitting and permanent connection between the barrelsand breech-piece than has heretofore been effected, with greater security and lesl liability of the breech and barrels springing apart. The barrels are connected with the breech-piece by means of certain hooks on the under side of the barrels, that are brought in contact with pins passing horizontally through the mortise in the breech-piece below the barrels. a part of which devices are old and have already been patented."

The specification then goes on to describe the inventor's "improvements thereon." Only one of them is of importance in this suit. It is described thus:
"As a further security, a projection, 1c, extends backward from the rear end of the barrels, arid fits into a corresponding receas in the recoil plate similar to -some other arms, the important difference being that the projection, k, has front face,· as clearly seen in figure 2, which are cut Jquareshoulders on to ·the -curve of a circle centering on pivot, d, correspondingwitbthe shoul·

LE. FEVER V · .

87

ders in the reCess of the recoil plate..This form of shoulder, instead of being rounded or wedged, as heretofore made, which allows the barrels to spring off from the recoil in firing, securely locks the parts together."

The pivot, d, is the pivot pin on which the barrels turn when their rear ends are thrown up. The claim founded on the above description, and which is the claim alleged to have. ,been infringed by the defendant, is as follows:
.. (1) In fire-arms the projection, k, formed with square shoulders on its sides, in combination with the recoil plate, provided with a corresponding recess, the shoulders on said projection and on the recess being curved in the arc of a circle struck from the pivot on which the barrels turn, substantially as and for the purposes described."

In the defendants' fire-arm there is a projection extending backward from the rear end of the barrels and fitting into a correspondshoulders; ing recess in the recoil plate. The projeotion has that is, horizontal section is a right angle. But instead of being curved in the arc of a circle struokfrom the pivot on which the barrels turn, the shoulders are straight and tangential to the line of movement. In both the plaintiffs' and the defendants' arms the shoulders oome up to the top surface of the barrels. It is contended for the plaintiffs that the curving of the shQulders is immaterial, and non-essential to the operation of the device, and that the invention really consists in the square shoulders coming up to the top surface of the barrel. Evidence to show this has been introduced on the part of the plaintiffs, and evidenoe to show the contrary has been introdueed on the part of the defendant. It is very clear that the vertical form of the shoulders is made an element of the claim by distinct language, and as that forms a curve in the arc of a circle struck from the pivot on which the barrels turn, and is not found in the defendant's arm, the plaintiffs contend that the rectilinear shoulders in that arm are the equivalents mechanically of the curved shoulders of the patent. If the claim had been intended to be a claim broadly to square shoulders, without reference to their vertical form, it would have been easy to make such a claim. But the claim industriously introduces the element of the vertical curving. The inventormqst have regarded that as a material element, and those who claim under the patent cannot now be heard to say that it is immaterial. The questjon oannot now be left for the domain of testimony. It is determined by the claim. Otherwise the plaintiffs,are put in the position of averring that the 8}!ecification contains J;l1ore. than is necessary to produce tho

88

FEDERAL REPORTER.

desired effect, and it is impossible to escape the conclusion that this was done for the purpose of deceiving the public, because the presumption is that the claim would not have been allowed in any broader form than that in which it appears. The patent to Gundersen of December 30, 1873, shows a barrel constructed with an extension rib, on which are found shoulders which are rectangular in a lateral direction, and engage with corresponding shoulders on the recoil plate. All the shoulders are rectilinear in a direction about tangential to the line of movement at its intersection with the upper edge of the barrel. They do not extend to the top surface of the barrel, but are covered by the extension of the rib. In view of the Gundersen patent there was no ground for Le Fever to claim shoulders rectangular in their horizontal cross section, and extending out to the top surface of the barrel, without reference to their vertical form. There would have been no invention in merely prolonging the upward extent af the shoulders; so the curved vertical forrilof the shoulders was introduced in connection with their being square. So far as appears, the first claim was novel and is valid, but it is not infringed by the defendant, because in its arm the shoulders are rectilinear. The bill is dismissed, with costs.

BLATCHFORD, Justice. The decision in Massachusetts disposes of all the questions on this motion,in favor of the plaintiff, except that of infringement. As to that, the alleged infringing article here clearly comes within the principles of the decision under which the defendants' article in the Massachusetts case was held to infringe. It adds two nipping places to the one the patent has, thus making three. It distributes the strain as to the material of the plate, and it bites more of the fabric by nipping it at three places. Thereby the sides